AEZ H.B. 1070 75(R)BILL ANALYSIS CRIMINAL JURISPRUDENCE H.B. 1070 By: Van de Putte 4-17-97 Committee Report (Unamended) BACKGROUND Currently, the Controlled Substances Act, Chapter 481 of the Health and Safety Code: (1) criminalizes all Penalty Group I controlled substances in terms of relatively large quantities (1 gram to 400 grams). Lysergic Acid Diethylamide (LSD) is now contained in Penalty Group I even though it is abused in very small quantities (Milligrams); (2) needs to be non-substantively updated with regards to penalty groups, precursor chemicals and laboratory apparatus; (3) articulates long complex lists of five (5) schedules of controlled substances which are modified and updated by the Commissioner Health; (4) stipulates that the Texas Department of Public Safety may deny an annual controlled substances renewal administratively, but must "petition" a Travis County District Court to revoke or suspend a controlled substances registration or precursor chemical/laboratory apparatus permit and fails to provide for statutory provisions for the voluntary surrender of the registration and permits; (5) permits limited law enforcement power to enter and inspect chemical precursor/laboratory apparatus permittees; and (6) is ambiguous about the Texas Education Agency's' authority to require compliance by private home schools along with public school districts through a memorandum of understanding establishing the reporting procedure regarding precursor chemicals and laboratory apparatus concerning this chapter; (7) non-substantive revisions have not been made over the last several sessions of the legislature to correct items such as, lists of precursor chemicals, double entry of sections of the law and the double numbering of sections of the law; and (8) the current law does not allow the release of statistical information obtained through the triplicate prescription program. PURPOSE As proposed, HB 1070: deletes LSD from Penalty Group I and adds it to the a newly created Penalty Group 1-A, criminalizes possession, manufacture and delivery of substance (LSD) in Penalty Group 1-A in terms of very small "abuse units", not in terms of grams and changes the references to penalty groups where necessary; (2) makes non-substantive updates to the substances listed in the penalty groups and the lists of precursor chemical and laboratory apparatus; (3) removes the complex list of schedules and codifies the authority of the Commissioner of Health to establish and modify the schedules; (4) brings Texas Department of Public Safety administrative power in line with other state agencies so the DPS can cancel, suspend, revoke, probate or accept voluntary surrender of a controlled substances registration; (5) provides for limited powers and inspection of chemical precursor/laboratory apparatus permit facilities and clarifies that these locations are "controlled premises"; (6) clarifies that a home school cannot claim an educational or research program exception to registration and permitting available to a school district; (7) makes non-substantive changes to correct double numbering, to update lists of precursor chemicals and laboratory apparatus, and to correct numerical errors-references; and (8) to allow DPS to compile and release statistical data for the triplicate prescription program. RULEMAKING AUTHORITY H.B. 1070 grants rulemaking authority to the Director of the Department of Public Safety in the following Sections: SECTION 11 of the bill, amends Section 481.077 (b) of the Health and Safety Code by granting rulemaking authority to the director to name additional or also delete a chemical substances as a precursor for purposes of Subsection (a) if the director determines that public health and welfare are jeopardized or are no longer jeopardized by evidenced proliferation or use of the substance in the illicit manufacture of a controlled substance or controlled substance analogue. SECTION 12 of the bill, amends Section 481.078 (b) of the Health and Safety Code by granting rulemaking authority to the director for the procedures and standards for voluntary surrender, cancellation, suspension, and revocation of a permit issued for controlled substance precursors. Section 481.078(f) states that the director may adopt rules to establish security controls and provide for inspection of a place, entity, or item to which a chemical precursor transfer permit applies. SECTION 13 of the bill, amends Section 481.080 (d) of the Health and Safety Code by granting rulemaking authority to the director to establish additional chemical laboratory apparatuses as prohibited when it is found that their use is specifically directed at proliferation of or the creation of controlled substances. SECTION 14 of the bill amends Section 418.081(b) by granting rulemaking authority to the director for the procedures and standards for voluntary surrender, cancellation, suspension, and revocation of a permit issued for chemical laboratory apparatus. Section 418.081(f) allows the director to establish security rules for qualification for the chemical laboratory apparatus. SECTION BY SECTION ANALYSIS SECTION 1. Section 481.002, Health and Safety Code, is amended by amending Subdivisions (4), (5), (6), (17), and (30) and adding Subdivision (50) to read as follows: (4) The definition of "controlled premises," or a place where records or documents required under this chapter are kept including a place where a person registered under this chapter may lawfully manipulate items related to controlled substances, is amended by including other items governed by this chapter, a chemical precursor or chemical laboratory apparatus. (5) Clarifies the definition of "controlled substance" by adding adulterated, or dilutanted nature of relevant substances, and adding Penalty Groups 1-A, or 2, as an immediate precursor. The term will also include the aggregate weight of any mixture, solution, or other substance containing a controlled substance. (6) Clarifies the definition of "controlled substance analogue" by adding relevant substances in Penalty Group 1-A and 2 to the relevant subsections. (17) Clarifies the definition of "Drug paraphernalia" in (F) a dilutant or adulterant, such as quinine hydrochloride, mannitol, inositol, nicotinamide, dextrose, lactose, or absorbent, blotter-type material, that is used or intended for use to increase the amount or weight of a controlled substance and that may or may not diminish the efficacy of the controlled substance; (30) Corrects a reference in the definition of "Opiate" from Section 481.038 of the Health and Safety Code to Subchapter B. (50) Defines an "Abuse unit" as a single unit in any form or medium that contains any amount of a controlled substance listed in Penalty Group 1-A, if the unit is commonly used in abuse of that substance; or any quarter-inch square section of paper section affected with a controlled substance that is not marked or perforated into individual abuse units; or 40 micrograms of the controlled substance including any adulterant or dilutant, if it makes the number of abuse units larger. SECTION 2. Paragraphs (E) and (F) of Subdivision (41) of Section 481.002, Health and Safety Code, as added by Chapters 351, 27, and 789, 15, Acts of the 73rd Legislature, 1993, are re-enacted. (E) Requires information be made available for certain drugs regarding the intended use of the drug unless the practitioner determines that furnishing this information is not in the best interest of the patient. (F) Requires legible name, address, Federal Drug Enforcement Administration registration number, and telephone number of the practitioner at the practitioner's usual place of business also be provided with the drug. SECTION 3. Amends Subchapter B, Chapter 481, Section 481.032, Health and Safety Code and strikes from publication in the statute Schedule I, Schedule I-A, Schedule II, Schedule III, Schedule IV, and Schedule V. Sec. 481.032. SCHEDULES. (a) The commissioner shall, by order, establish and modify the following schedules of controlled substances under this subchapter: Schedule I, Schedule I-A, Schedule II, Schedule III, Schedule IV, and Schedule V. (b) A reference to a schedule in this chapter means the most current version of the schedule established or altered by the commissioner under this subchapter and published in the Texas Register on or after January 1, 1998. Sec. 481.033 EXCLUSION FROM SCHEDULES AND APPLICATION OF ACT. (a), (b), (e), (f), and (g) of this section are appropriately renumbered with no changes. (c) Makes a reference change to the previously listed drug schedules in Schedule II. (d) Makes a reference change to the previously listed drug schedules in Schedule III or IV. Sec. 481.034. ESTABLISHMENT AND ALTERATION OF SCHEDULES BY COMMISSIONER. (a) Clarifies how the Commissioner of Health, with the approval of the Texas Board of Health, shall establish a list of substances designated in Schedules I through V for the purposes of this Chapter. (b) Except for alterations in schedules required by Subsection (g), the commissioner may not make an alteration in a schedule unless the commissioner holds a public hearing on the matter in Austin. (c) The commissioner may not add a substance to a schedule that has been deleted from the schedules by the legislature, delete a substance from the schedules that has been added to the schedules by the legislature, or reschedule a substance if the substance has been placed in a schedule by the legislature. (d), (e), (f), and (g) are not changed. (h) Not later than the 10th day after the date on which the commissioner designates, deletes, or reschedules a substance under Subsection (a), the commissioner shall give written notice of that action to the director and to each state licensing agency having jurisdiction over practitioners. Sec. 481.035. FINDINGS. Is renumbered with no change. Sec. 481.036. PUBLICATION OF SCHEDULES. (a) Requires annual publication of the drug schedules by TDH by filing a certified copy of the schedules with the secretary of state not later than the fifth working day after the action by the commissioner under this subchapter. (b) Each published schedule must show changes, if any, made in the schedule since its latest publication. (c) An action by the commissioner that establishes or changes a schedule under this subchapter may not take effect before the 21st day after the date on which the schedule or change is filed for publication with the secretary of state unless an emergency exists for which the action before that date is necessary to avoid an imminent hazard to the public safety. SECTION 4. Section 481.061, Health and Safety Code, is amended by adding Subsection (d). (d) Except as otherwise provided by this chapter, a person may not administer, prescribe, produce, possess, or deliver a controlled substance in this state without a registration issued under this subchapter. SECTION 5. Subsections (a) and (c) of Section 481.0621, Health and Safety Code, are amended to clarify the exclusion of home schools from the regulation of this Chapter. SECTION 6. Amends Subsections (a), (e), (f), and (g) of Section 481.063, Health and Safety Code. (a) Clarifies the director's (DPS) authority to refuse to issue a registration to a person to manufacture, distribute, analyze, or conduct research with a controlled substance if the person fails to provide a consent form signed by the person granting the director the right to inspect the person's controlled premises and any record, controlled substance, or other item covered by this chapter. (e) Clarifies the requirements for an application for registration to manufacture, distribute, analyze, dispense, or conduct research with a controlled substance and under what circumstances that application may be denied. (f) The director may inspect the premises or establishment of an applicant for registration in accordance with this chapter. (g) A registration expires after one year and a renewal must be obtained annually under the rules adopted by the director, unless the rules provide for a longer period of expiration and renewal. SECTION 7. VOLUNTARY SURRENDER, CANCELLATION, SUSPENSION, PROBATION, OR REVOCATION OF REGISTRATION. Amends Section 481.066, Health and Safety Code. (a) Allows the Director to accept a voluntary surrender of registration under this Chapter. (b) The director may cancel, suspend, or revoke a registration, place on probation a person whose license has been suspended, or reprimand a registrant for a cause described by Section 481.063(e). (c) The director may cancel a registration if it was issued in error. (d) The director may limit the cancellation, suspension, probation, or revocation to the particular schedule or controlled substance within a schedule for which grounds for cancellation, suspension, probation, or revocation exist. (e) After a voluntary surrender or the cancellation, suspension, probation, or revocation of a registration, the director may seize or place under seal all controlled substances owned or possessed by the registrant under the authority of the registration. A disposition may not be made of the substances until the time for administrative appeal of the director's order has elapsed or all appeals have been concluded, except perishable substances can be sold and deposit of the proceeds of the sale will be held until completion of appeal. When a cancellation, surrender, suspension, probation, or revocation order becomes final, all controlled substances may be forfeited to the state as provided under Subchapter E. (f) is renumbered without change. (g) The Administrative Procedure Act (Chapter 2001, Government Code) applies to a proceeding under this section to the extent that it does not conflict with this subchapter. (h) The director shall notify relevant state agencies of an order accepting a voluntary surrender or canceling, suspending, probating, or revoking a registration and the forfeiture of controlled substances. (i) The director shall give written notice to the applicant or registrant of any action taken on their registration or application. The notice shall be sent by registered mail, return receipt requested, to the most current address of the applicant or registrant contained in the files of the Department of Public Safety. (j) An applicant or former registrant may petition the director for issuance or reinstatement of the registration based on good cause shown by the petitioner. SECTION 8. Subsections (b) and (c) of Section 481.071, Health and Safety Code, are amended to read as follows by referencing Schedule III drugs where formerly sections of this code were referenced. SECTION 9. Amends subsections (h), and (i) of Section 481.074 of the Health and Safety Code are amended to correct, and clarify references to formerly numbered sections of this Chapter. (k) Is amended by clarifying administrative procedures into (6) and (7). SECTION 10. Amends Sections 481.076 (a), (b), and (d) or the Health and Safety Code. (a) Clarifies the circumstances under which the Director may disclose information given to DPS as a result of this chapter except the investigator from a professional medical examiners board, or law enforcement as the director finds "proper need" has been shown. (b) Clarifies that the Director can glean statistical data from the data collected in this chapter. (c) Clarifies what information can be used for administrative purposed of this chapter. SECTION 11. Amends Section 481.077, Health and Safety Code, by amending Subsections (a), (b), (c), (k), and (l). (a) Deletes Morpholine, and includes Ephedrine in the exception provided by Subsection (l) of Section 481.077. (b) The director by rule may name additional or also delete a chemical substances as a precursor for purposes of Subsection (a) if the director determines that public health and welfare are jeopardized or are no longer jeopardized by evidenced proliferation or use of the substance in the illicit manufacture of a controlled substance or controlled substance analogue. (c) This section does not apply to registrants under Section 481.063. (k) Lists and clarifies the requirements for permit holders under Section 481.078(b)(1). SECTION 12. Amends (b) and (e) and adds (f) to Section 481.078, Health and Safety Code. (b) The Director by rule shall establish procedures and standards for the issuance and renewal, or the voluntary surrender, cancellation, suspension, probation, or revocation of a permit for one sale, transfer, receipt, or otherwise furnishing of a controlled substance precursor or a permit for more than one sale, transfer, receipt, or otherwise furnishing of a controlled substance precursor. (e) The Director may not issue a permit under this section unless the director receives a consent form signed by the person seeking the permit granting the director the right to inspect the person's controlled premises, records, and any chemical precursor covered by this chapter. (f) The director may inspect the premises or establishment of a permit holder or an applicant for a permit under this chapter. SECTION 13. Amends Subsections (a), (d), (e) and (m) Section 481.080, Health and Safety Code. (a) Updates and clarifies the definitions of "chemical laboratory apparatus" means any item of equipment designed, made, or adapted to manufacture a controlled substance or a controlled substance analogue. (d) The director by rule may add or remove additional chemical laboratory apparatus for purposes of Subsection (a) if the director determines that public is jeopardized by or not by a proliferation of a chemical laboratory apparatus used in the illicit manufacture of a controlled substance. (e) This Section does not apply to registrants under Section 481.063. (m) This subsection applies to a manufacturer, wholesaler, retailer, or other person who sells, transfers, or otherwise furnishes any substance subject to Subsection (a) and to a permit holder, commercial purchaser, or other person who receives a substance governed by Subsection (a) except a holder of a one-time permit issued under Section 481.081(b)(1). Further clarification of administrative actions for this section are enumerated in (1), (2), and (3). SECTION 14. Section 481.081 of the Health and Safety Code is amended in (b) and (e) and by adding (f). (b) Directs the Department to adopt rules and procedures for the suspension or surrender pf a permit issued under this section for a chemical laboratory apparatus. (e) Limits the Departments ability to issues the above mentioned permit for a chemical laboratory apparatus without written consent to allow inspections of the premises or apparatus by the Department. (f) The Department shall develop rules for the security of a premises in which an apparatus possessed under this section is kept or maintained. SECTION 15. Section 481.102 of the Health and Safety Code is amended as follows. Sec. 481.102. PENALTY GROUP 1. Alphacetylmethadol, Flunitrazepam otherwise known as Rohypnol, and Gamma Hydroxybutyrate are added to Penalty Group 1. Additional clarification is given for opium and opiates that are not listed in Penalty Group 3 or 4 other than Thebiane derived Butorphanol and its salts. Difenoxin, Codeine, Ethylmorphine, Hydrocodone, Morphine, Diphenoxylate, and Dihydrocodeine that are not listed in Penalty Group 3 or 4, are still maintained in Penalty Group 1. SECTION 16. Subchapter D of Chapter 481 of the Health and Safety Code is amended by adding Section 481.1021. Sec. 481.1021. PENALTY GROUP 1-A. Creates Penalty Group 1-A for lysergic acid diethylamide (LSD) ist isomers, salts, and salts of isomers. SECTION 17. Section 481.103 of the Health and Safety Code is amended as follows. Sec. 481.103. PENALTY GROUP 2. Alpha-ethyltryptamine, 4-bromo-2 5dimethoxyphenethylamine, 2, 5-dimethoxy-4-ethylamphetamine (DOET), Aminorex, Cathinone, and Methcathinone are added to Penalty Group 2. SECTION 18. Section 481.104 of the Health and Safety Code is amended as follows. Sec. 481.104. PENALTY GROUP 3. Zolpidem and anabolic steroids are added to Penalty Group 3, along with clarifying language relating to chemical compounds that were previously listed in Penalty Group 3. SECTION 19. Section 481.105 of the Health and Safety Code are amended as follows. Sec. 481.105. PENALTY GROUP 4. Clarifies the currently listing of chemical compounds that stimulate the central nervous system. SECTION 20. Amends Subchapter D of Chapter 481 of the Health and Safety Code by adding Section 481.1121 and Section 481.1151. Sec. 481.1121. OFFENSE: MANUFACTURE OR DELIVERY OF SUBSTANCE IN PENALTY GROUP 1-A. (a) Creates and offense if a person knowingly manufactures, delivers or possesses with the intent to manufacture or deliver LSD. (b) Creates a felony of the third degree for fewer than 20 abuse units, felony of the second degree for between 20 and 80 abuse units, a first degree felony for between 80 and 4,000 abuse units, and life imprisonment bor more than 4,000 abuse units and a fine not to exceed $250,000 for violation of (a). Sec. 481.1151. OFFENSE: POSSESSION OF SUBSTANCE IN PENALTY GROUP 1-A. (a) Creates and offense for possession of LSD. (b) Creates a state jail felony for possession of fewer than 20 abuse units, a third degree felony for possession of between 20 and 80 abuse units, a second degree felony for between 80 and 4,000 abuse units, and a first degree felony for between 4,000 and 8,000 abuse units, and life imprisonment or a fine not to exceed $250,000 for more than 8,000 abuse units of LSD. SECTION 21. Amends Section of 481.122(a) of the Health and Safety Code. Sec. 481.122(a) Includes Penalty Group 1-A to the offense of knowingly delivering a controlled substance or marihuana to a minor. SECTION 22. Includes in Section 481.123(a) of the Health and Safety Code includes Penalty Group 1-A, or compounds of LSD in the definition of controlled substance analogue. SECTION 23. Amends Section 481.128 of the Health and Safety Code. Sec. 481.128. OFFENSE AND CIVIL PENALTY: COMMERCIAL MATTERS. (a) Clarifies that it is an offense to if a registrant or dispenser permitted under this Chapter knowingly distributes a controlled substance in violations of Sections 481.070 through 481.075 or refuses to maintain security measures required by rules adopted under this Chapter. (b) Civil Penalty for violations of this Section to the state shall not exceed $5,000. (c) Section deletes old civil penalty language and updates the state jail felony penalty. (d) Adds culpable mental state to be considered in the assessment of penalty for non compliance with the requirements of this section. (e) Renumbers remaining sections of this code. SECTION 24. Amends Subchapter D of Chapter 481 of the Health and Safety Code by adding Sections 481.136 through 481.139. Sec. 481.136. OFFENSE: UNLAWFUL TRANSFER OR RECEIPT OF CHEMICAL PRECURSOR. (a) Selling, transferring, or receiving a precursor defined in Section 481.077(a) without a permit, without compliance with that permit, without accurate reporting in accordance with the permit issuance, or by knowingly violating the rules adopted by this section is an offense. (b) That offense is a state jail felony, second convictions are third degree felonies. Sec. 481.137. OFFENSE: TRANSFER OF PRECURSOR SUBSTANCE FOR UNLAWFUL MANUFACTURE. (a) Creates an offense for the sale, transfer, or receipt of a precursor as defined in Section 481.077(a) with the knowledge or intent that the receipt of that substance is related to the unlawful manufacturing of a controlled substance or analogue. (b) That offense is a third degree felony. Sec. 481.183. OFFENSE: UNLAWFUL TRANSFER OR RECEIPT OF CHEMICAL LABORATORY APPARATUS. (a) Creates an offense for the sale, transfer, or receipt of a chemical apparatus described by Section 481.080(a) without a permit, without compliance with the permit, with falsifying any application process for the permit, or by knowingly violating a rule adopted under Sections 481.080 or 481.081. (b) That offense is a state jail felony, second convictions are third degree felonies. Sec. 481.139. OFFENSE: TRANSFER OF CHEMICAL LABORATORY APPARATUS FOR UNLAWFUL MANUFACTURE. (a) Creates an offense for the sale, transfer, or receipt of a chemical apparatus as defined in Section 481.080(a) with the knowledge or intent that the receipt of that substance is related to the unlawful manufacturing of a controlled substance or analogue. (b) That offense is a third degree felony. SECTION 25. Amends Section 481.160(e) of the Health and Safety Code as added by Chapter 285, Acts of the 72nd Legislature, Regular Session, 1991, by relettering that section to (f) and including community supervision in place of probation. SECTION 26. Repeals Sections 481.079 and 481.082 of the Health and Safety Code. SECTION 27. Requires the Commissioner of Public Health to file with the Secretary of State for publication in the Texas Register the drug schedules I - IV not later that December 1, 1997. This act takes effect on January 1, 1998. The schedules in effect immediately before the effective date of this Act continues in effect until January 1, 1998. SECTION 28. (a) Changes made by this Act only applies to an act committed after the effective date of this Act. (b) Offenses committed before the effective date of this Act comply with former law. SECTION 29. (a) This Act taken effect January 1, 1998. (b) Section 27 of this Act takes effect September 1, 1997. SECTION 30. EMERGENCY CLAUSE.